January 26, 1977

Presidential Transition Act (3 U.S.C. § 102 note)—

Provision of Military Aircraft and Hospital

Corpsman to a Former President (31 U.S.C. § 638)

You have orally asked for the opinion of this Office whether and under what 

circumstances the President might be able to make available to former President 

Ford military aircraft for his transportation and a medical corpsman to 

accompany him on such flights. Our response may be summarized as follows:

(1) The President may direct aircraft assigned to him to transport Mr. 

Ford on official transition business and may detail a medical corpsman to 

accompany him on such flights.

(2) The President may, on a one-time basis, direct an aircraft assigned to 

him to carry Mr. Ford on personal business or pleasure but may not detail a 

medical corpsman to that flight.

(3) With respect to the flights referred to in (2) the Department of Defense 

(DOD) may, at the request of the Director of the Secret Service, detail a 

military aircraft and a medical corpsman should the Director conclude that 

these are consistent with the statutory authority of the Secret Service to protect 

the former President.

The question you raise presents itself in at least two different contexts. The 

first context would involve travel by Mr. Ford where such travel can be shown 

to be related to the transition itself. In our view, such official travel would be at 

no expense to Mr. Ford. The Presidential Transition Act of 1963, Pub. L. No. 

88-227, 78 Stat. 153, as amended, 3 U.S.C. § 102 note, provides that, for 6 

months from the expiration of a President’s term of office necessary services 

may be provided by the Administrator of General Services under § 4 of the Act 

to the former President, as provided by § 2, “ to promote the orderly transfer of 

the executive power . . . .” Certainly travel of that nature would fall within the 

scope of these provisions. We are not aware that the Administrator has any 

authority to utilize a military aircraft for that purpose. But it is our view that the 

President can order such official travel by Mr. Ford to be accomplished in 

military aircraft. We have taken the position in the past that “ in the absence of 

an expression of a contrary intent by Congress . . . the President must be

78-71 MEMORANDUM OPINION FOR THE DEPUTY

COUNSEL TO THE PRESIDENT

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deemed authorized by the Constitution to utilize the troops and equipment 

under his command for reasonable purposes,even if they are not purely military 

in nature.” Memorandum, April 14, 1975, at 2-3 (hereafter April 14 Memorandum). Thus, aircraft placed directly at the President’s disposal, such as the 

aircraft of the military support group detailed to serve the President, can 

be used to transport Mr. Ford on transition business, without expense to 

Mr. Ford.

The second context in which your question might arise would involve 

situations in which former President Ford’s movement is of a personal, rather 

than official, nature. In our view, as asserted in the April 14 Memorandum, 

ibid., the President may direct aircraft placed at his command to be used for 

other than “ official purposes.” This view is based on the authority contained in 

31 U.S.C. § 638a(c)(2). That paragraph, which provides generally that 

Government aircraft may not be used other than “ exclusively for official 

purposes,” specifically provides that “ the limitations of this paragraph shall 

not apply to any . . . aircraft for official use of the President . . . .” Thus, an 

inference may be drawn that the President is empowered to devote aircraft 

assigned to him for other than “ official purposes.”

However, as the April 14 Memorandum also points out, under Department of 

Defense regulations, non-Government traffic is generally carried on a reimbursable basis by the person carried. Although certain exceptions to this general 

requirement are carved out, transport of former Presidents on personal business 

would not appear to fall within any of these exceptions. We believe that 

detailing a military aircraft on a regular— as opposed to a one-time—basis for 

non-Govemment purposes would both stretch the authority of the President as 

Commander-in-Chief and would not be justified by the inference drawn from 

31 U.S.C. § 638a(c)(2). Furthermore, such travel on a nonreimbursable basis 

could create a tension between the President’s authority and DOD regulations. 

Those regulations, while they may not technically foreclose such action, might 

create the appearance of impropriety.

It appears to us that the detailing of a medical corpsman stands upon the same 

footing. During the transition period, under his Commander-in-Chief powers, 

the detailing of a corpsman by the President to the former President can be 

accomplished if such detailing constitutes the provision of “ necessary services” to further the transition under § 4 of the Act. For other purposes there 

would appear to be no authority for the detailing of a medical corpsman by the 

President. Unlike the President’s use of military aircraft assigned to him, we 

are unaware of any statutory provision like 31 U.S.C. § 638a(c)(2) that would 

permit, by inference, the use of a medical corpsman to accompany the former 

President.

One possibility that we have had too little time to explore fully is the extent 

to which military aircraft and a medical corpsman might be detailed for Mr. 

Ford’s use on personal business in connection with the Secret Service 

protection afforded to him. The protection of the Secret Service is extended to a 

former President during his lifetime, 18 U.S.C. § 3056. Section 2 of Pub. L. 

No. 90-331, 82 Stat. 170, as amended, 18 U.S.C. § 3056 note, provides that all

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Federal departments must assist the Director of the Secret Service in carrying 

out those protective functions. It would therefore seem that a determination by 

the Director of the Secret Service that military aircraft should be used to 

transport former President Ford in order to facilitate Secret Service protection 

could furnish an adequate basis for the detail of available military aircraft to fly 

the former President. It is our understanding that the Secret Service has 

determined in the past that in some circumstances the use of military aircraft 

actually may reduce the overall cost of Secret Service protection as compared 

with providing the protection that would be required aboard a commercial 

aircraft. It may be that the Secret Service could apply the same reasoning with 

respect to the detailing of a medical corpsman.

L eon U lm an

Deputy Assistant Attorney General

Office o f Legal Counsel

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